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Labor Relations Update

NLRB Rights Poster Rule Gets Torn Down Again, This Time By Fourth Circuit

By Mark Theodore on Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Uncategorized

Of the many actions by the NLRB during the last few years, one of the most contentious has been its attempt to require all private employers falling under its jurisdiction to post a notice informing employees of their rights to unionize.  The notion of posting such a notice was considered bad enough, but when the NLRB significantly expanded on the regulation to actually make failure to post an unfair labor practice but also make a violation of the rule grounds for tolling the statute of limitations on other unfair labor practices, the agency stirred up a firestorm of opposition.  The NLRB delayed implementation twice as it faced resistance.  Then, of course, it got sued.  Twice.  Once in the District of Columbia and once in South Carolina.  Now the federal appeals court in each jurisdiction has weighed in and the rule has been invalidated in each case. 

Last month we reported the DC Circuit’s invalidation of the rule, largely on the grounds that it violated the free speech provisions of the Act.  This month, in a separate case filed by the United States Chamber of Commerce in South Carolina, the Fourth Circuit Court of Appeals also invalidated the rule.  It is a significant decision because it details the role Congress intended for the NLRB to play, something that appears to have been lost these last several months.

The case is U.S. Chamber of Commerce v. NLRB, No. 12-1757 (4th Cir. June 14, 2013).  The unanimous three judge panel of the Court first analyzed the NLRA and determined that the core role of the agency, as set forth by Congress, was to be reactive:  “(1) to conduct representation elections, and (2) to prevent and resolve [unfair labor practices].”  Thus, the Court concluded the agency’s role is to handle things properly instigated before it, not to seek new things to do unrelated to these core missions.

The Court then went through the NLRB’s statement of the need for the rule as resulting from its conclusion that, “American workers are largely ignorant of their rights under the NLRA….” and that this “knowledge gap” was created because the “overwhelming majority of private sector employees are not represented by unions, and thus lack an important source of information about NLRA rights….”  Against this thin, and largely disputed, backdrop the Court noted:

The challenged rule is unusual in several respects.  The Board has only rarely engaged in rulemaking during its seventy-seven year history.  And it has never promulgated a notice-posting rule of any kind.

In light of its conclusion of the NLRB’s core responsibilities, the Court reviewed the Section 6 of the NLRA, which provides, simply, “The Board shall have authority from time to time to make, amend, and rescind, in the manner described by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.”  The question then became whether the rights poster rule was “necessary” to carry out any provision of the Act.  The answer to the question, the Court concluded, was the “substantive provisions of the Act make clear that the Board is a reactive entity, and thus do not imply that Congress intended to allow proactive rule-making of the sort challenged here through the general rule-making provision of Section 6.”

The Court rejected the NLRB’s argument that several sections of the Act supported the need for the poster rule:

The Board points to a number of sections in the Act, arguing that the rule is necessary to carry them out.  The Chamber responds that no provision in the Act requires employers who have not committed labor violations to be subject to a duty  to post employee notices.  We agree.  The NLRB serves expressly reactive roles:  conducting representation elections and resolving ULP charges.  As an examination of the Act as a whole makes evident, none of its sections imply that Congress intended to grant the Board authority to issue the notice-posting rule sua sponte.

The Court then, just to make sure, analyzed each section of the Act.  It found no provision supported making a rule that required notification of rights.  In particular, the Court noted that Sections 9 and 10 of the Act, which set forth the Board’s representation and ULP adjudication functions, do not support a blanket rule for all employers, regardless of whether they have matters pending before the agency.  The Court disposed of the Board’s argument with model efficiency:

Essentially, the Board argues that because the enforcement functions provided for by Sections 9 and 10 are reactive, it was necessary to proactively create the challenged rule in order for employees to undertake their role in instigating those processes.  With this reasoning, the Board attempts to derive from provisions governing the functions and operation of the agency the authority to do something entirely distinct from those functions, with the rationale that doing so would make them more effective.  However, regardless of how laudable the NLRB’s goal of educating workers may be, ‘there is nothing in the text of the NLRA to suggest the burden of filling the ‘knowledge gap’ should fall on the employer’s shoulders.’ [citing National Association of Manufacturers, et al. v. NLRB, (DC Circ. May 7, 2013) , Henderson, J., Concurring] Put simply, we cannot accept the Board’s circular argument; the Board may not justify an expansion of its role to include proactive regulation of employer’s conduct by noting its reactive role under the Act.

 The legislative history of the Act also was analyzed by the Court and found wanting.   Finally, the Court noted that several labor statutes had been enacted during the period 1935 and 1974 (during which the NLRA had been amended three times), many of which expressly provide for the posting of notices.

 What will be the agency’s next move?  It’s anyone’s guess but one would hope that facing unprecedented turmoil that the agency would let this one go instead of expending resources it might very well use to simply educate the American worker on its own instead of using those same resources to require employers to do it.

NLRB Upholds One Election, Overturns Another In Pair Of Decisions

By Mark Theodore on Posted in NLRA, NLRB, Objectionable Conduct, Representation Elections, Uncategorized

The very real questions about the NLRB’s decision-making authority may have finally slowed the agency down.  We have come to expect over the last few years, a relentless expansion of NLRB authority and reach, especially given the December timeframe when all sorts of surprises seem to come out of the agency.  So, it is somewhat noteworthy when the NLRB issues decisions that seem to fall squarely into existing precedent; it is even more noteworthy when one could easily envision the opposite result.

The Board recently issued two decisions involving objections made to representation elections.  In the first, a union victory was overturned after a non-employee was found to have acted as an agent on behalf of the union.  The second involved some objections that, although meritorious, could not have affected the outcome of an election that was decided by a wide margin of votes; there, the election results were not disturbed by the NLRB.

Union Election Win Reversed Due To Threats Made By Former Employee Found To Be Agent Of Union

Bellagio, LLC, 359 NLRB No. 128 (May 31, 2013), involved a situation where a casino employer and union were actively engaged in a campaign heading towards a secret ballot election.  During the course of the campaign, a former employee of the employer offered to assist the union in its efforts to win the election.  The union declined the assistance. 

The union hosted an organizing meeting at its hall to discuss the campaign.  Current employee-voters showed up.  Despite the union’s rejection of his offer to help, the former employee also attended.  Although the union representative noticed the former employee was at the meeting, he did not ask him to leave nor did he otherwise say anything about the former employee’s presence.

An employee voter later expressed his interest in voting for the company, and identified employees who were pro-union.  After the voter made his intentions clear, he received a text from the former employee that said, in part, “I never pegged u for a rat” and which expressed displeasure for the pro-company employee’s vocal nature.  The two then had a telephone conversation where the former employee stated, “Bro, you know, if this vote goes through, you’re toast.” 

The union won the election.  The threat made by the former employee was reported and the employer filed objections.  The hearing officer overruled the objection on the grounds that the former employee’s threats could not be attributed to the union because he was not an “agent” of the labor organization.

The Board reversed, noting what has been the law for many years:

The Board applies common law principles when considering whether an individual is an agent of the union. ‘Apparent authority results from the manifestation by the principal to a third party that creates a reasonable basis for the latter to believe that the principal has authorized the agent to perform the acts in question.’  Great American Products, 312 NLRB 962, 963 (1993).  ‘[E]ither the principal must intend to cause the third party to believe that the agent is authorized to act for him, or the principal should realize that this conduct is likely to create such a belief.’  Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988)

The Board applied these principles and found that there was enough evidence to establish the former employee acted with apparent authority on behalf of the union, making the threat he issued attributable to the the union.  The Board considered the fact the former employee had approached the union asking to help and had attended a union meeting.  The union representative “should have realized that without” clarifying why the former employee was in attendance that employees would assume he was “working on behalf of the Union in this organizing effort.”  The Board then overturned the election and ordered a new one.

The principles of agency cited by the Board have been the law for many years.  What makes this case noteworthy is that it is extremely rare to find a person not employed directly by the union to be an agent.  There are countless examples of people who belong to “union affiliated” groups who picket, handbill, boycott and take other action on behalf of a union’s cause, all with some manifestation of acceptance by the union, whose conduct escapes punishment under the Act because the NLRB deems them not to be an agents of the union.

Threats Made During Election Not Pervasive Enough To Warrant New Election

 In Sanitation Salvage Corp., 359 NLRB No. 130 (June 5, 2013), the employer faced an election campaign by two competing unions, the original petitioner and an intervenor.  During the course of the campaign a representative of the employer made threat s to reduce overtime opportunities if the petitioner won the election.  The threats were made directly to two employees.  The election was held and the intervenor won with 32 votes to petitioner’s 1o votes.  Petitioner filed objections over the threats.

The hearing officer ruled that the election should be overturned.  The Board rejected this ruling and confirmed the intervenor as representative of the employees.  In doing so the Board noted that it “will set aside an election when ‘the objectionable conduct so interfered with the necessary ‘laboratory conditions’ as to prevent the employee’s expression of a free choice in the election.”  Dairlyland USA Corp, 347 NLRB 310, 313 (2006).  The Board, noted, that there ”is no evidence” that the threats were “disseminated beyond the two employees directly affected by it.”  The Board then stated that given the wide margin of victory for the intervenor, it could not find that the threats would have altered the outcome:

The Board has declined to set aside election results in cases in which the disparity between the vote margin and the number of employees affected by the objectionable conduct was similar to the disparity in this case.  For example, in Werthan Packaging, 345 NLRB 343 (2005), the Board found that a supervisor interrogated three employees, threatened a fourth employee and arguably interrogated a fifth employee.  Id. at 344.  Noting that the union lost the election by 21 votes while the objectionable conduct affected at most five employees, the Board found that a new election was not warranted.

Again, these legal principles are not new.  The application, however, is not exactly consistent.  One need not search very far to to find an NLRB case where the alleged objectionable conduct cannot be proven to have affected a single person in the voting unit, yet the Board reversed the election win for an employer.

Whether these cases represent some sort of trend or pattern is impossible to know.  Only time will tell.

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

By Mark Theodore on Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review of employer policies.

Lately, of course, the NLRB seems to be pulling back a bit on this zealous pursuit of policies and has issued, at various points, Advice Memoranda which provide some guidance as to what is appropriate and what is not appropriate in cases where the government dismisses the charge (Advice keeps confidential those memoranda where a complaint is authorized for obvious reasons).  A recently released Advice Memorandum demonstrates, again, that not every social media post by an employee that concerns the workplace is protected by the Act.

Tasker Healthcare Group, 4-CA-094222, Advice Mem. (May 8, 2013) involved a common scene.  A group of current and former employees were exchanging private messages on Facebook.  The “first hour” of messaging concerned the planning of social events.  Then, in response to a discussion about a former employee returning to work, the Charging Party wrote that she told a supervisor to “back the freak off” when the supervisor tried to tell her something.  Additionally, Charging Party wrote:

They [the Employer] are full of shit. . .They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*CK….FIRE ME…Make my day.”

Some two hours after this exchange, the Facebook conversation must have waned because Charging Party complained about “feeling deserted.”  A current employee responded and made a reference to how “bad” things were at the workplace.  The Charging Party employee did not respond to this message.

A different employee who was part of the message string shared the messages with the employer.  The employer terminated Charging Party, noting that it was “obvious” the employee was not interested in continuing employment.  In particular the employer was concerned how Charging Party’s attitude might affect her patient care responsibilities.  Charging Party, of course, felt that her termination was unlawful, asserting that her comments were actually “concerted” activity protected by the Act.

It did not take much for the Division of Advice to direct dismissal of the charge.  Advice noted that Charging Party’s conduct was in reality the opposite of concerted activity:

In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions.  Specifically, her comments bemoaned the return of a former employee and stated that her supervisor tried to tell her something and she told her to ‘back the freak off’; that the employer was ‘full of shit’; and that the Employer should ‘FIRE ME…Make my day.”  These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment.  Thus, although her comments referenced her situation at work, they amounted to nothing more than individual ‘griping,’ and boasting about how she was not afraid to say what she wished at work.

The Division of Advice found it significant that there was no back and forth among employees or other evidence that Charging Party’s statements were “an expression of shared concerns.” 

The result seems obvious:  an employer can lawfully terminate an employee who openly expresses disdain for the workplace as well as her supervisor.  The case is nonetheless significant.  It shows the agency is still sending to headquarters every issue that involves social media for additional scrutiny, no matter how far removed from the Act.  While there is no new law being applied, the government is certainly looking very closely at the context of the comments made by the employee.   The case also demonstrates how the attention given the issue of social media in the workplace results in charges being brought asserting conduct is “protected concerted activity” even when there is no mention of a union and, as is evident here, involves little more than an (hours long) online discussion among employees, some of which referenced the workplace.

Third Circuit Holds Former NLRB Member Becker’s Recess Appointment Invalid, Vacates NLRB Decision Made In August, 2011

By Ronald Meisburg on Posted in Uncategorized

The United States Court of Appeals for the Third Circuit has held that the President’s recess appointment power is limited to intersession recesses, i.e., those recesses which occur (if they occur at all) between sessions of the Congress.  In so doing, it held the March, 2010 recess appointment of former NLRB member Craig Becker to be invalid, and vacated a decision issued by a three member panel in which he participated.  National Labor Relations Board v. New Vista Nursing and Rehabilitation, Case Nos. 11-3440, 12-1027, 12-1936 (May 16, 2013).

The Third Circuit agreed with the DC Circuit’s earlier decision in Noel Canning, on the intersession versus intrasession recess issue, and did not reach the issue of when the vacancy for which the appointment was made needs to have arisen.  (The DC Circuit had held that the vacancy must also arise during an intersession recess.)

Theoretically, the Third Circuit’s decision could be applied to all decisions by three member panels on which former Member Becker served.  However, because many of those decisions may be closed, it is difficult to determine what the effective reach of the Third Circuit’s decision may be.  Although the earlier DC Circuit decision in Noel Canning involved only the members of the current Board (Member Block and Member Griffin), its rationale also applies equally to Member Becker (and other former intrasession recess appointees).  Earlier this year, following its issuance of the Noel Canning decision, the DC Circuit ordered a case challenging a rule making in which Member Becker participated held in abeyance.

It is now clear that orders and other actions of the Board which do not involve at least three valid members acting, are subject to rejection by the DC Circuit and the Third Circuit.  It is not yet known whether the Third Circuit will follow the DC Circuit in holding all further cases presenting the issue in abeyance pending the outcome of the government’s petition for Supreme Court review in the Noel Canning case.  It is also unknown at this time whether the NLRB will either seek reconsideration or Supreme Court review of the New Vista decision, or whether it will alter its policy of continuing to issue decisions in the face of this new adverse decision on the recess appointment issue.

No Surprises in Senate Committee Hearing on NLRB Nominees

By Ronald Meisburg on Posted in NLRB, Uncategorized

There were no real surprises at today’s Senate HELP Committee’s hearing on President Obama’s five NLRB member nominees. The Senate Committee members agreed that the nominees were well qualified for the jobs, and thanked them for their willingness to undertake public service.  The nominees spoke about their backgrounds, their desire to apply the law as written and fairly, and their respect for the NLRB as an institution.

But it is clear that there is a partisan divide over the NLRB and its direction over the past four years.  This was illustrated most clearly when Senator Scott of South Carolina expressed his displeasure to NLRB Chairman Pearce over the Board’s decision in Karl Knauz Motors, and Senator Warren of Massachusetts followed up with a question allowing the Chairman to further explain that decision.

Perhaps the only “electric” moment in the proceedings was when Senator Sanders of Vermont asserted, “What this debate is about is Republican obstructionism.”  Senator Sanders then proceeded to criticize what he views as the excessive use of filibusters by Republicans in the Senate, and threatened to push for a change in the Senate rules which would forbid a filibuster on pending Presidential appointment nominees and allow a straight up or down vote on the nominees on the Senate floor.

This was followed by a colloquy between Committee Chairman, Senator Harkin and Ranking Member, Senator Alexander, concerning the nature of the Senate and its traditions, processes and procedures.  It is safe to say that one Senator’s obstruction is another Senator’s deliberation.  It is also safe to say that most Senators have perfected the art of disagreeing without being disagreeable, at least to one another.

A vote is currently scheduled for next Wednesday, May 22, in which the Committee can be expected, along party lines, to vote the nominees out of Committee and to the Senate floor for consideration.  At that point it is anticipated that one or more of the nominees will be filibustered.  If the nominees are stopped by the filibuster, and NLRB Chairman Pearce’s term is allowed to run out on August 27, then there will either need to be some kind of political deal or a possible second round of recess appointments to keep the Board in the business of deciding cases and taking other actions reserved to the Board.

In the meantime, under the direction of the Acting General Counsel, the NLRB regions will continue to process charges and election petitions, and Administrative Law Judges will continue to hold hearings, seemingly unaffected – at least for now – by the legal troubles surrounding the Board appointments.

 

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

By Mark Theodore on Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices

A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting of a notice of “employee rights.”  Rather, it included some items that would additionally expand the NLRB’s reach over employers in three unpleasant ways.  First, the rule made the failure to post the notice an unfair labor practice.  Second, it stated that failure to post the notice could be evidence of “anti-union-animus.”  Third, the rule stated that failure to post may toll the Act’s six-month statute of limitations as to other unrelated activities. 

When the rule was promulgated (over a din of complaints), it was immediately challenged in South Carolina and in the District of Columbia.  As we previously reported, here and here, both Federal District Courts invalidated the rule.  In light of the serious questions about the rule the DC Circuit granted an injunction staying the rule pending the appeal.  The South Carolina case is still pending before the Fourth Circuit.

The DC Circuit’s opinion in National Association of Manufacturers et. al. v. NLRB (DC Cir. May 7, 2013), vacates the rule, finding it violates various provisions of the National Labor Relations Act.  In the prior case, the District Court rejected the free speech argument made by the challengers.  The Court of Appeals, however, rested much of its decision on employer free speech rights, ruling that two of the three enforcement mechanisms (failure to post is itself an unfair labor practice and failure to post may be evidence of unlawful motive) clearly violated the often ignored free speech provision of the Act.  The Court also ruled that the NLRB cannot simply toll the six month statute of limitations by regulation.  This, of course, is an important case because it directly addresses issues that have been raised since the rule was promulgated, and gives a clear analysis of the existing law which undoubtedly will be used in other cases.

Board Had A Quorum To Promulgate The Rule

The DC Circuit addressed an issue not raised by either party but significant nonetheless as it gives some insight into the depth of the recess appointment issue.  At the time the rights poster rule was issued, three of the four members of the then existing NLRB (Chairman Liebman and Members Pearce and Hayes) were confirmed by the Senate.  The fourth member, Craig Becker, had received a recess appointment.  The Court stated, “To the extent that Noel Canning applies — we assume, without deciding, that it does–Becker’s appointment was constitutionally invalid.”  The Court ruled that the promulgation occurred as of the date Chairman Liebman signed the final rule on August 22, 2011, shortly before her term expired, meaning the Board had a quorum of three members.  The reference does foreshadow a potential future problem for the NLRB:  decisions handed down after Chairman Liebman left in August 2011 means the Board actions may be invalid due to a lack of quorum during an extended period.

The Poster Violates Employer Free Speech

The Court noted that the proper starting place is Section 8(c) of the Act, “which seems to us to control much of the case.”  Section 8(c) provides the employer’s right of free speech in matters concerning unions, and is very clear:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The Court held that, “[a]lthough § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.”

The Court explained that by requiring employers to post or be found guilty of an unfair labor practice, the rule violated the employer’s right to not make certain speech:

Of course, we are not faced with a regulation forbidding employers from disseminating information someone else has created.  Instead, the Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice.  But that difference hardly ends the matter.  The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. 

In other words, the NLRB’s attempt to compel employers to give only one side of the debate over unionization violates its Section 8(c) right to choose what to disseminate to its own employees.  The Court explained further:

We return then to the question with which we began.  Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union.  Of course § 8(c) clearly does this.  How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)?  Like the freedom of speech guaranteed in the First Amendment § 8(c) necessarily protects–as against the Board—the right of employers (and unions) not to speak.  This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union. 

The Court then held that the poster rule violates Section 8(c) because it not only makes failure to post an unfair labor practice, it also treats such failure as “evidence of anti-union animus.”  NLRB case law is rife with findings of “anti-union animus” based on mere opposition to a union, and surely this decision will be cited in future cases as authority that the agency may not merely classify lawful speech as evidence of an unfair labor practice.

NLRB May Not Toll Statute of Limitations By A Failure To Post

The Court then addressed the portion of the NLRB’s rule that says the statute of limitations under the Act can be tolled by a failure to post.  The Court found this provision violated Section 10(b) of the Act, which states:

no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and with a service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.

The Court noted that under the doctrine of “equitable tolling,” which was the basis relied upon by the Board in making its rule, it must be rooted in congressional intent.  Section 10(b) was added in 1947, while much of the “equitable tolling” cases occurred in unrelated statutes passed decades after the NLRA.  The Court scolded the Board for its attempt to expand the statute of limitations:

The short of the matter is that the Board has not invoked any authority suggesting that the 1947 Congress intended to allow § 10(b) to be modified in the manner of the Board’s tolling rule.  Whether one frames the Board’s tolling rule as resting on the employer’s failure to post the Board’s notice or on the charging employee’s lack of knowledge of his rights under the National Labor Relations Act, the Board marshaled nothing to show that by 1947 this was a generally accepted basis for tolling limitations periods.

The three judge panel vacated the rule in its entirety.  Two of the three judges would have gone farther, questioning whether the NLRB had a right to promulgate any rule requiring a notice posting.

What now?  For the time being the rule remains invalid.  There is some chance this will be appealed, but the Board may wait to see what happens with the Fourth Circuit case.

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

By Mark Theodore on Posted in NLRB, Rulemaking

As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional.  The 138 page document NLRB v. Noel Canning, A Div. of Noel Corp., Cert Petition (April 24, 2013) was filed with the U.S. Supreme Court yesterday. 

The petition sets forth many of the same arguments made before the Court of Appeals, and concludes with the following:

Review by this Court is warranted to resolve the circuit conflict created by the decision below, to remove the resulting constitutional cloud over the acts of past and present recess appointees, and to restore the President’s capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent.

Of course, those who have business pending before the NLRB know that the term “temporary” is used loosely.  The appointees at issue had held their position for over a year at the time of the dispute.   Assuming the Supreme Court grants the petition, which seems likely given all the confusion out there about the validity of the NLRB’s actions, the case will be heard in the term starting October 2013.

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

By Ronald Meisburg on Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statements

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations.  The Board found that such a policy chilled the right of employees to engage in the protected concerted activity of discussing such workplace concerns. 

The Board further held in Banner Health that, in order to minimize the impact on that right, an employer must first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.   The Board concluded that the employer’s “blanket approach” of “maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct” violated Section 8(a)(1) (prohibiting employers from interfering, restraining or coercing employees in the exercise of their rights).  Slip opinion at 2.

Recently, the NLRB’s General Counsel’s Division of Advice released a memorandum which offered additional guidance in this area.  The memorandum was issued following a settlement reached in Verso Paper, Case 30-CA-089350 (January 29, 2013).  There, the employer maintained a Code of Conduct which included the following provision prohibiting employees from discussing ongoing investigations (italics added):

Verso has a compelling interest in protecting the integrity of its investigations.  In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.  

Based on the Banner Health decision, the Division of Advice in Verso Paper found that the italicized portion of this provision violates Section 8(a)(1), because it did not take into account the employer’s burden to demonstrate in each case that the employer has a business justification for the confidentiality rule that outweighs employees’ rights to discuss such workplace concerns. 

However, the Division of Advice took the extraordinary step of providing what it would consider lawful language to replace the italicized language above.  In footnote 7 of the Advice Memorandum it stated: 

We note that the first two sentences of the Employer’s rule lawfully sets forth the Employee’s interest in protecting the integrity of its investigations.  Consistent with Banner Health, the Employer could modify the remainder of the rule to lawfully advise employees that:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Advice Memorandum at p. 3, n. 7.

The combined language could help bolster an employer’s argument in a given case that a confidentiality instruction was not for the purpose of “chilling” Section 7 activity.  While the language does not by its terms relieve the employer from making the determination required by Banner Health, which is Board law, it lawfully allows an employer to advise its employees in advance that if such a determination is made (i.e., if the employer “reasonably imposes such a requirement” of confidentiality), the employees must abide by it on pain of “disciplinary action up to and including . . . termination.”  It remains to be seen how this will play out in specific cases, but it is clear that the Division of Advice would look favorably on such language. 

 

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site.  The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013). 

The facts involved a construction project.  The general contractor was non-union but employees of a subcontractor were represented by a union.  The union’s collective bargaining agreement with the subcontractor allowed access during working hours where employees were working so long as the union made reasonable efforts to notify the subcontractor of their presence and did not interfere with work.  At a construction site, two union representatives approached the non-union site management at a trailer where the project manager had an office.  The union representatives, who had not made an appointment, asked for subcontractor information related to work being performed on the project.  The project manager told the union representatives to look it up themselves on a publicly available website, and then told them to leave.  One union representative then stated that the site could be picketed.  The other union representative stated that picketing would occur only if a violation of area standards had been found (backtracking on the threat to picket).

The project manager “loudly and profanely” demanded that the union representatives leave, at which point they both walked toward the exit.  The project manager then pushed one of the union representatives from behind, sending him down the trailer’s metal steps where he struck his hand and neck on the railing.  The police were called but declined to arrest anyone.

The union representative (not the union itself) filed an unfair labor practice charge alleging that the assault violated Section 8(a)(1) of the Act.  The Administrative Law Judge dismissed the allegation noting that there was no right, contractual or otherwise, for the union representatives to be on site:

[The Employer] had an exclusionary property interest in its construction trailer, which particularly given the purpose and circumstances of [the union representatives'] October 1, 2010 visit, permitted [the Employer] to deny them access.  Alternatively, [the Employer set reasonable and nondiscriminatory restrictions on [the union representatives'] access to its construction trailer, the failure to follow which lost the two representatives access entitlement.  Because [the union representatives] made no effort to schedule a visit before entering the construction trailer, they cannot claim that their ejection from it violated their contractual right of access….In these circumstances while [project manager's] violent expulsion of [union representative] from the construction trailer was repugnant and inexcusable and while it may have transgressed civil or criminal laws, it did not violate the Act.

 In other words, the purpose of the visit did not implicate the Act as the union representatives did not have a right to be there, and there was other remedies available for the assault.  As to the injuries suffered, the Administrative Law Judge noted the union representative “had existing back and hip problems having had prior neck surgery with a 70-day work absence.”

The NLRB disagreed, finding that the assault violated the Act.  The Board noted that the Act protects “actions in furtherance of an area-standards objective…” and that “harassing, or physically assaulting union agents engaged in such activity” has been found to be a violation of the Act.  The Board cited Roger D. Hughes Drywall, 344 NLRB 413, 415 (2005) in support of this proposition, although that case involved an employer calling police and harassing union agents who were picketing on public property.  The Board held that the property interests were not an issue:

The question of [the Employer's] asserted right to exclude the union representatives from the trailer is irrelevant to the disposition of this case because they were leaving at the time of the assault.

This is somewhat contorted reasoning, and begs the question of whether the action, which was not witnessed by any employees, would not have violated the Act if the union representatives had refused the request to leave the premises.  The union representatves’ activity seems less than clearly protected: there was no existing dispute and the union representatives merely were asking for information the employer had no legal obligation to provide.  The Board seems to have extended the Act’s protection to the mere assertion of a right that is related to the Act.

Despite the tenuous connection to the Act, the Board ordered a “make whole” remedy for the union representative but noted that “it remains unsettled whether [the union representative] suffered bodily injury as a result of the assault” and left the matter to a compliance proceeding.

While no one can condone a physical assault, the case stands for the proposition that a mere allegation that physical harm resulted from some allegation is a matter for the NLRB when the union representatives were merely at the site to solicit information unrelated to any existing dispute.  The union representative has other remedies he could pursue instead of having the Board now decide in a compliance proceeding whether he has suffered physical injuries.

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

By Mark Theodore on Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, Uncategorized

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of the language.

The NLRB released another clue as to how it is looking at employer policies in a recently released Advice Memorandum.  In The Boeing Company, 19-CA-088157, Advice Memorandum (February 28, 2013), the NLRB’s Division of Advice found that the employer’s “Code of Ethics” did not violate Section 8(a)(1) of the Act, “because employees would not reasonably construe its potentially overbroad language to restrict protected concerted activities, in the context of the almost forty pages of explanations and examples immediately following the Code.”

The language at issue

The portions of the Code of Conduct that were alleged to be unlawful were as follows:

Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwase cause embarrassment to the company.

and further:

As an employee of [Employer], I will ensure that:

I will not engage in any activities that might create a conflict of interest for me or the company.

I will follow all restrictions on the use and disclosure of information.  This includes following all requirements for protecting [Employer] information and ensuring that non-Boeing proprietary information is used and disclosed only as authorized by the owner of the information or as otherwise permitted by law.

I will protect all company customer and supplier assets and use them only for appropriate company pre-approved activities.

The employer’s employees, who largely are represented by a union, are required to attend a day-long orientation program.  Both employer and union representatives attend the session to answer questions.  The policy also contains many pages of examples and frequently asked questions.

Advice evaluated each of the statements at issue in light of the tests set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf’d mem. 203 F.3d 52 (DC Cir. 1999) and Lutheran Heritage Village-Livonia, 343 NLRB 646, 646-7 (2004), noting specifically that the Board has “cautioned against reading particular phrases in isolation” and urging a view of the rule in its proper context.   Id.

As to the policy’s prohibition of conduct “that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment” Advice concluded the phrase was not unlawful because it must be viewed in the broader context of the guidelines.  Advice stated:

The Ethical Guidelines describes numerous activities that could undermine the Employer’s ‘honesty, impartiality, reputation’ or otherwise ’cause embarrassment,’ including bribery, antitrust violations, insider trading and offering and accepting certain ‘business courtesies’ regarding commercial customers and government employees–activities which clearly do not implicate activities protected by Section 7.

Similarly, the prohibition against engaging in activities that may cause a “conflict of interest” was not unlawful because the accompanying Ethical Guidelines “devotes two pages of the types of conflicts of interests the Employer” wishes to avoid and consequently, “it is neither overbroad or ambiguous.”

Finally, the prohibition of using certain company information likewise was found to be lawful because:

Employees would not reasonably construe this language, in context, in restricting Section 7 activities such as discussing wages and other terms and conditions of employment with other employees or union representatives.  Thus, the confidentiality language does not specifically reference and restrict information concerning and their jobs.  

Advice gave some consideration to the fact that the employees were represented by a union:

Additionally, the fact that the Union is present at the employee orientations where the policy is presented would also lead employees to believe that restrictions on the use of Employer assets and information would not extend to employee communications with their employee representatives.

The major takeaway here is similar to the General Counsel’s guidance on social media. The more specific the policy is aimed at the conduct it wishes to regulate, the more likely it will be found to be lawful.  Of course, the presence of the union at the workplace is a factor here but as we have seen previously, the Board has found violations in a handbook despite union representation.